Amicus Curiae Brief — United States, Petitioner v. Michael Andrew Gary

No. 20-444

IN THE

Supreme Court of the United States

_______________________________

UNITED STATES OF AMERICA,

v.

MICHAEL ANDREW GARY,

_______________________________

Petitioner,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FOURTH CIRCUIT

_______________________________

BRIEF OF FORMER UNITED STATES

DISTRICT COURT JUDGES AS AMICI

CURIAE IN SUPPORT OF RESPONDENT

Thomas M. Bondy

ORRICK, HERRINGTON &

SUTCLIFFE LLP

1152 15th Street, NW

Washington, DC 20005

Kory DeClark

ORRICK, HERRINGTON &

SUTCLIFFE LLP

405 Howard Street

San Francisco, CA 94105

Andrew D. Silverman

Counsel of Record

Rachel G. Shalev

Katherine E. Munyan

ORRICK, HERRINGTON &

SUTCLIFFE LLP

51 West 52nd Street

New York, NY 10019

(212) 506-5000

asilverman@orrick.com

Counsel for Amici Curiae

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ..................................... ii

INTEREST OF AMICI CURIAE .............................. 1

INTRODUCTION AND SUMMARY OF

ARGUMENT ....................................................... 1

ARGUMENT ............................................................. 4

I.

Respondent’s Futility Exception To PlainError Review For Uniformly Foreclosed

Arguments Promotes Judicial Economy

And Fairness....................................................... 4

A. Efficiency. ...................................................... 6

B. Fairness. ...................................................... 10

II. Authority From This Court And Others

Supports Respondent’s Futility Exception. ..... 14

A. This Court’s cases support the futility

exception. ..................................................... 14

B. Lower court cases support the futility

exception. ..................................................... 18

C. Nothing prevents this Court from

adopting the futility exception.................... 22

III. Respondent’s Futility Exception Is

Appropriately Narrow. ..................................... 24

CONCLUSION ........................................................ 27

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Anders v. California,

386 U.S. 738 (1967)..............................................15

Bailey v. United States,

516 U.S. 137 (1995)..............................................23

Bates v. Sec’y, Fla. Dep’t of Corr.,

768 F.3d 1278 (11th Cir. 2014)..............................8

In re Becraft,

885 F.2d 547 (9th Cir. 1989)................................12

Bousley v. United States,

523 U.S. 614 (1998)........................................22, 25

Cardinale v. Louisiana,

394 U.S. 437 (1969)..............................................14

Commonwealth v. Vasquez,

923 N.E.2d 524 (Mass. 2010)...............................19

Cross v. United States,

892 F.3d 288 (7th Cir. 2018)................................21

Engle v. Isaac,

456 U.S. 107 (1982)........................................16, 25

English v. United States,

42 F.3d 473 (9th Cir. 1994)..................................21

iii

Estelle v. Smith,

451 U.S. 454 (1981)..............................................16

Griffin v. California,

380 U.S. 609 (1965)..............................................14

Griffith v. Kentucky,

479 U.S. 314 (1987)........................................17, 18

Grosso v. United States,

390 U.S. 62 (1968)................................................15

Hankerson v. North Carolina,

432 U.S. 233 (1977)..............................................15

Henderson v. United States,

568 U.S. 266 (2013)................................ 4, 7, 10, 13

Honeycutt v. Mahoney,

698 F.2d 213 (4th Cir. 1983)................................13

Johnson v. United States,

520 U.S. 461 (1997)....................................6, 22, 23

Jones v. Barnes,

463 U.S. 745 (1983)................................................8

Lee v. Kemna,

534 U.S. 362 (2002)................................................6

Luis v. United States,

136 S. Ct. 1083 (2016)............................................7

McCoy v. United States,

266 F.3d 1245 (11th Cir. 2001)......................11, 25

iv

Morrison v. United States,

No. 16-cv-1517, 2019 WL 2472520

(S.D. Cal. June 12, 2019) .....................................15

Neely v. Martin K. Eby Const. Co.,

386 U.S. 317 (1967)................................................5

O’Connor v. Ohio,

385 U.S. 92 (1966)..........................................14, 15

People v. Sandoval,

161 P.3d 1146 (Cal. 2007) ....................................19

Puckett v. United States,

556 U.S. 129 (2009)........................................4, 5, 6

Reed v. Ross,

468 U.S. 1 (1984)........................................7, 11, 16

Rehaif v. United States,

139 S. Ct. 2191 (2019)......................................2, 26

Rosales-Mireles v. United States,

138 S. Ct. 1897 (2018)..........................................10

Smith v. Estelle,

602 F.2d 694 (5th Cir. 1979)................................16

State v. Goodyear,

413 P.2d 566 (Ariz. 1966) ....................................19

State v. Ledbetter,

881 A.2d 290 (Conn. 2005)...................................19

State v. Robinson,

253 P.3d 84 (Wash. 2011) ....................................19

v

Thornley v. Penton Publ’g, Inc.,

104 F.3d 26 (2d Cir. 1997) ...................................20

United States v. Baker,

489 F.3d 366 (D.C. Cir. 2007) ........................12, 21

United States v. Baumgardner,

85 F.3d 1305 (8th Cir. 1996)............................8, 21

United States v. Booker,

543 U.S. 220 (2005)..............................................18

United States v. Bousley,

950 F.2d 727 (8th Cir. 1991)................................23

United States v. Byers,

740 F.2d 1104 (D.C. Cir. 1984) ............................20

United States v. Cano-Varela,

497 F.3d 1122 (10th Cir. 2007)............................20

United States v. Frady,

456 U.S. 152 (1982)..............................................17

United States v. Gaudin,

515 U.S. 506 (1995)..............................................22

United States v. Grote,

961 F.3d 105 (2d Cir. 2020) .................................22

United States v. Hughes,

401 F.3d 540 (4th Cir. 2005)................................23

United States v. Johnson,

979 F.3d 632 (9th Cir. 2020)................................23

vi

United States v. Knoll,

116 F.3d 994 (2d Cir. 1997) .................................23

United States v. Lockhart,

947 F.3d 187 (4th Cir. 2020)................................24

United States v. Malpeso,

115 F.3d 155 (2d Cir. 1997) .................................22

United States v. McGuire,

79 F.3d 1396 (5th Cir.).........................................26

United States v. Monteleone,

257 F.3d 210 (2d Cir. 2001) .................................22

United States v. Olano,

507 U.S. 725 (1993)..........................................2, 26

United States v. Rivera,

513 F.2d 519 (2d Cir. 1975) .................................20

United States v. Robinson,

251 F.3d 594 (7th Cir. 2001)................................12

United States v. Smith,

250 F.3d 1073 (7th Cir. 2001)..........................6, 25

United States v. Uscanga-Mora,

562 F.3d 1289 (10th Cir. 2009)........................5, 20

United States v. Viola,

35 F.3d 37 (2d Cir. 1994) ......................... 11, 21, 24

United States v. Washington,

12 F.3d 1128 (D.C. Cir. 1994) ........................10, 17

vii

Wade v. Mayo,

334 U.S. 672 (1948)................................................6

Statutes & Rules

18 U.S.C. § 922(g)........................................................3

18 U.S.C. § 924(a)(2) ...................................................3

28 U.S.C. § 2255 ........................................................15

Fed. R. Crim. P. 2 ........................................................4

Fed. R. Crim. P. 51 ....................................................24

Fed. R. Crim. P. 51(b) .................................................4

Fed. R. Crim. P. 52(a) ...............................................17

Fed. R. Crim. P. 52(b) ............................. 19, 21, 23, 24

Other Authorities

Admin. Office of the U.S. Courts,

Federal Judicial Caseload Statistics

2019, https://tinyurl.com/asf6svap

(last visited Mar. 25, 2021)....................................9

Admin. Office of the U.S. Courts,

Federal Judicial Caseload Statistics

2020, https://tinyurl.com/avxx3duz

(last visited Mar. 25, 2021)....................................9

Admin. Office of the U.S. Courts, U.S.

District Courts—Judicial Business

2019, https://tinyurl.com/2vds67x9

(last visited Mar. 25, 2021)....................................8

viii

Andrew Kragie, Federal Judiciary

Seeks 79 New Judgeships

Nationwide (Mar. 16, 2021),

https://tinyurl.com/49zpjfmt ..................................9

Christopher Slobogin, The Case for a

Federal Criminal Court System (and

Sentencing Reform), 108 Cal. L. Rev.

941 (2020) ...............................................................9

Joseph Story, Life and Letters of Joseph

Story 90 (William W. Story ed. 1851)....................8

Richard P. Mauro, The Chilling Effect

that the Threat of Sanctions Can

Have on Effective Representation in

Capital Cases, 36 Hofstra L. Rev.

417 (2007) .............................................................12

Robert Jackson, Advocacy Before the

Supreme Court, 25 Temple L.Q. 115

(1951)......................................................................8

Toby J. Heytens, Managing

Transitional Moments in Criminal

Cases, 115 Yale L.J. 922 (2006)...........................12

William J. Stuntz, The Uneasy

Relationship Between Criminal

Procedure and Criminal Justice, 107

Yale L.J. 1 (1997) ...................................................7

1

INTEREST OF AMICI CURIAE 1

Amici are two former United States District Court

Judges who spent years overseeing criminal proceedings. They are now law professors who research and

write about criminal justice policy. They remain dedicated to the proper administration of justice.

Judge Paul G. Cassell was a judge of the United

States District Court for the District of Utah from

2002 until 2007. He is now on the faculty of the S.J.

Quinney College of Law at the University of Utah.

Judge Nancy Gertner was a judge of the United

States District Court for the District of Massachusetts

from 1994 until 2011, leaving to be on the faculty of

Harvard Law School.

INTRODUCTION AND SUMMARY OF

ARGUMENT

Criminal defendants should not be penalized with

plain-error review when they fail to raise in the district court objections that circuit courts have uniformly foreclosed. When an intervening change in law

renders those once-futile claims viable, appellate

courts should treat them as preserved and subject to

the corresponding standard of appellate review, not

the four-factor test elaborated in United States v.

Olano, 507 U.S. 725 (1993). Amici therefore agree

1 The parties have consented to the filing of this amicus

brief. No counsel for a party authored the brief in whole or in

part. No party, counsel for a party, or any person other than amicus curiae and their counsel made a monetary contribution intended to fund the preparation or submission of the brief.

2

with Respondent on the threshold question that the

preserved-error standard applies, not plain-error review. Amici do not take a position on the other questions arising in the case, including whether an error

under Rehaif v. United States, 139 S. Ct. 2191 (2019),

is structural and whether Respondent otherwise satisfies the third and fourth plain-error prongs under

Olano.

As former federal district court judges, amici well

understand the importance of claim preservation.

When defendants raise their objections first in the

district court, district judges—who are closest to the

case—can avoid or fix errors, thereby sparing (or at

least facilitating) appellate review and potentially

averting remand or retrial. The contemporaneous-objection requirement and its appellate counterpart, the

plain-error rule, also deter sandbagging by defense

counsel.

But the interests in judicial economy and fairness

those rules ordinarily advance are not served when

the would-be objection is entirely foreclosed by a circuit consensus this Court later sweeps away. In such

a scenario, there is nothing to fix and no tactical advantage to be gained from failing to object. Rigid insistence on claim preservation in those circumstances

instead actively undermines efficient judicial administration, as it forces defendants to object at every

turn, clogging up cases with kitchen-sink briefs and

wasting the resources of already overburdened counsel and courts. It also unfairly rewards defendants

whose counsel was either preternaturally prescient or

ignorant, undiscerning, or even downright obstruc-

3

tionist, while punishing those whose counsel appropriately focused on arguments that were more likely

to succeed.

The rule Respondent and amici advance here not

only makes sense but also finds strong support in this

Court’s precedents—the Government’s argument to

the contrary notwithstanding. And its circumscribed

scope should assuage the Court’s concern that recognizing it would promote, rather than frustrate, the

values that animate claim-preservation rules. Critically, an unraised claim should not be treated as preserved merely because the defendant’s circuit has

rejected it. Rather, an objection is futile and thus exempt from plain-error review only when all the circuits to have addressed the claim of error have

rejected it.

Because the courts of appeals “uniform[ly]” held

at the time of Respondent’s plea that knowledge of

prohibited status was not an element of an offense under 18 U.S.C. § 922(g) and § 924(a)(2), Government’s

Opening Brief (OB) 4, Respondent’s claim of error

should not be subject to plain-error review, even

though Respondent raised it for the first time on appeal. The judgment below should therefore be affirmed if the Court determines that Rehaif error is

structural or if the Government cannot carry its burden to show on these facts that the error was harmless.

4

ARGUMENT

I.

Respondent’s Futility Exception To PlainError Review For Uniformly Foreclosed

Arguments Promotes Judicial Economy And

Fairness.

At the trial level, the contemporaneous-objection

rule directs litigants to raise objections “when the

court ruling … is made or sought.” Fed. R. Crim. P.

51(b).

Plain-error

review

“sets

forth

the

consequences” on appeal when litigants fail to do so.

Puckett v. United States, 556 U.S. 129, 135-36 (2009).

Those two rules work in tandem to “induce the timely

raising of claims and objections” in district court prior

to appellate proceedings. Id. at 134. And in the typical

case, they promote judicial efficiency and the fair

treatment of parties. See Henderson v. United States,

568 U.S. 266, 278 (2013); see generally Fed. R. Crim.

P. 2 (rules of criminal procedure “are to be interpreted

to provide for the just determination of every criminal

proceeding, to secure simplicity in procedure and

fairness in administration, and to eliminate

unjustifiable expense and delay”).

As former district court judges, amici well

understand, and are committed to advancing,

efficiency and fairness in judicial proceedings. Amici

are the first to agree that, in ordinary circumstances,

defendants should timely raise issues in the trial

court and face heightened appellate review when they

do not. After all, trial judges’ proximity to the case and

familiarity with the parties put them “in the best

position” to address issues brought to their attention

in the first instance. Puckett, 556 U.S. at 134; see

5

generally Neely v. Martin K. Eby Const. Co., 386 U.S.

317, 325 (1967) (stating that some issues “should be

passed upon by the district court … because of the

trial judge’s firsthand knowledge of witnesses,

testimony, and issues”). Avoiding or fixing errors at

the district court level—e.g., giving a curative

instruction or granting the defendant “an immediate

remedy”—can preempt a costly appeal and remand,

Puckett, 556 U.S. at 140, thereby sparing the

“needless[] ping-pong back and forth between the

district court and court of appeals, with the parties

expending substantial resources fighting over a

problem that could have been readily identified and

cured up front.” United States v. Uscanga-Mora, 562

F.3d 1289, 1294 (10th Cir. 2009) (Gorsuch, J.). At the

very least, bringing possible errors to the district

court’s attention ensures that the factual record is

adequately developed for appeal. See Puckett, 556

U.S. at 134, 140.

The pairing of the contemporaneous-objection rule

and plain-error review also promotes fairness in the

typical case. The contemporaneous-objection rule

recognizes that it is fair to require a party who

perceives an error to inform the court and opposing

counsel of the error right away, rather than

capitalizing on it by “remaining silent” and “belatedly

raising the error only if the case does not conclude in

his favor.” Id. at 134. And plain-error review reduces

any incentive to “sandbag[]” the prosecution (and the

district court) in this way. Id.

Critically, however, requiring defendants to raise

in the district court arguments that are squarely

6

foreclosed across the circuits does nothing to advance

judicial economy and fundamental fairness. In fact, in

those “rare circumstances,” “unyielding application of

the general rule[s]” of contemporaneous objection and

plain error “would disserve any perceivable interest.”

Lee v. Kemna, 534 U.S. 362, 379-80 (2002).

A. Efficiency.

It is a fundamental maxim that “[g]ood judicial

administration is not furthered by insistence on futile

procedure.” Wade v. Mayo, 334 U.S. 672, 681 (1948).

That is particularly true here. Where uniform

precedent bars an argument for error, the district

court cannot “correct or avoid the mistake,” Puckett,

556 U.S. at 134, because at that point there is no

mistake at all. The court can only deny the objection.

The court, in theory, could allow the parties to

supplement the record based on the defendant’s

farfetched objection, but the parties, and the district

court, would be shooting in the dark, not knowing

what the record would require in the hypothetical

world in which there were an error.

Without a futility exception, counsel may feel duty

bound “to file one ‘kitchen sink’ brief after another,

raising even the most fanciful defenses that could be

imagined based on long-term logical implications

from existing precedents.” United States v. Smith, 250

F.3d 1073, 1077 (7th Cir. 2001) (Wood, J., dissenting

from denial of reh’g en banc). It is not just pointless to

require a defense attorney to “mak[e] a long and

virtually useless laundry list of objections to rulings

that were plainly supported by existing precedent,”

Johnson v. United States, 520 U.S. 461, 468 (1997), it

7

is harmful. As Justice Scalia put it, requiring a

defendant to object “when the law is settled against”

the claim of error “disserve[s] efficiency” and “the

orderly administration of justice.” Henderson, 568

U.S. at 284 (Scalia, J., dissenting); see also Reed v.

Ross, 468 U.S. 1, 16 (1984) (explaining in the habeas

context that it would “actually disrupt” proceedings to

“encourag[e] defense counsel to include any and all

remotely plausible constitutional claims that could,

some day, gain recognition”); see infra 15-16

(discussing Reed’s applicability to this case).

For one thing, it may leave all but the luckiest

defendants—the cert-lottery-winning Rehaifs of the

world—worse off. It is well-documented that defense

counsel—particularly for the many indigent

defendants in the criminal justice system—are often

“overworked and underpaid.” Luis v. United States,

136 S. Ct. 1083, 1095 (2016). “[M]any federal public

defender organizations and lawyers appointed under

the Criminal Justice Act serve numerous clients and

have only limited resources.” Id. (citation omitted).

When defense counsel devote their limited time to

pointless or even frivolous objections, they have less

time to spend developing and presenting more fruitful

arguments. Cf. William J. Stuntz, The Uneasy

Relationship Between Criminal Procedure and

Criminal Justice, 107 Yale L.J. 1, 34 (1997)

(“Resource constraints impose a ceiling on how many

things counsel can object to, how many claims can

plausibly be raised.”).

What’s more, bloated arguments are bad

arguments: As Justice Jackson put it, “receptiveness

8

declines as the number of assigned errors increases.

Multiplicity hints at lack of confidence in any one....

[M]ultiplying assignments of error will dilute and

weaken a good case and will not save a bad one.”

Robert Jackson, Advocacy Before the Supreme Court,

25 Temple L.Q. 115, 119 (1951), quoted in Jones v.

Barnes, 463 U.S. 745, 752 (1983); see also Joseph

Story, Life and Letters of Joseph Story 90 (William W.

Story ed. 1851) (“Who’s a great lawyer? He, who aims

to say [t]he least his cause requires, not all he may.”).

That is, “[g]ood lawyers, knowing that judges and

juries have limited time and limited patience, serve

their clients best when they are judicious in making

objections.” Bates v. Sec’y, Fla. Dep’t of Corr., 768 F.3d

1278, 1295 (11th Cir. 2014). Amici can confirm that in

the harried district court setting, it is vital that

defense counsel focus the court’s attention on their

clients’ most meritorious arguments.

And yet the Government’s position encourages

defendants “to raise all possible objections at trial

despite settled law to the contrary…, impeding the

proceeding[s] and wasting judicial resources.” United

States v. Baumgardner, 85 F.3d 1305, 1309 (8th Cir.

1996).

The already-heavily-burdened district courts

should not have to contend with a flurry of such

objections. In 2019 alone, each district court judge

was responsible for an average of 440 civil cases and

137 criminal cases against new defendants. Admin.

Office of the U.S. Courts, U.S. District Courts—

Judicial Business 2019, https://tinyurl.com/2vds67x9

(last visited Mar. 25, 2021). And in just the last year,

9

filings in U.S. district courts increased by 13%, while

terminations “held steady.” Admin. Office of the U.S.

Courts, Federal Judicial Caseload Statistics 2020,

https://tinyurl.com/avxx3duz (last visited Mar. 25,

2021). The increased workload has led the Judicial

Conference of the United States to ask Congress to

create 77 new U.S. district court judgeships and

convert eight temporary ones to permanent status.

Andrew Kragie, Federal Judiciary Seeks 79 New

Judgeships Nationwide, Law360 (Mar. 16, 2021),

https://tinyurl.com/49zpjfmt (noting that “district

court filings have increased 47% since 1990 while the

number of district judges has risen barely 5%”).

A sharp uptick in criminal cases—80% over the

past 45 years—has contributed to the increase in

workload. Christopher Slobogin, The Case for a

Federal Criminal Court System (and Sentencing

Reform), 108 Cal. L. Rev. 941, 944 (2020). Criminaldefendant filings rose 11% in 2019 alone, and by

another 3% in 2020. Admin. Office of the U.S. Courts,

Federal

Judicial

Caseload

Statistics

2019,

https://tinyurl.com/asf6svap (last visited Mar. 20,

2021); Federal Judicial Caseload Statistics 2020,

supra. It is also taking longer to resolve those cases:

Despite speedy trial rules, the median length of a

federal criminal case from initiation to termination

has increased by over 200% in the last 45 years.

Slobogin, supra, at 946-47.

The contemporaneous-objection rule and plainerror review are meant to streamline the judicial

process, but in the circumstances of this case, they

would have the perverse effect of clogging

10

overburdened district courts with frivolous filings,

diminishing the quality of advocacy, and wasting

precious resources. In short, it is “contrary to the

efficient administration of justice, to expect a

defendant to object at trial where existing law

appears so clear as to foreclose any possibility of

success.” United States v. Washington, 12 F.3d 1128,

1139 (D.C. Cir. 1994).

B. Fairness.

The Government’s rule also does nothing to

advance the fairness interests behind claimpreservation rules. And indeed, it is itself deeply

unfair.

Critically, when an objection is thoroughly

foreclosed, there is no risk of sandbagging—the

principal fairness concern that underlies claimpreservation rules. Supra 5. The point of sandbagging

is to withhold an objection to an error the trial court

could have fixed so that the defendant can keep in her

back pocket a basis for reversal on appeal should she

lose at trial. But the defendant gets no strategic

benefit from sitting on an objection to an error that is

at that time, and so far as anyone can reasonably

anticipate, non-existent. See Rosales-Mireles v.

United States, 138 S. Ct. 1897, 1911 (2018) (noting the

low risk of sandbagging where any benefit is “highly

speculative”). If, as this Court said in Henderson, the

“lawyer who would deliberately forgo objection now

because he perceives some slightly expanded chance

to argue for ‘plain error’ later” is like a “unicorn,” 568

U.S. at 276, then the lawyer who deliberately stays

silent in the hope that this Court will overturn the

11

circuit consensus while the case is still on appeal and

give her a second bite at the apple is a creature

beyond fairy tale.

The real unfairness lies in saddling defendants

with plain-error review for failing to raise thoroughly

foreclosed claims that are only later proven viable.

See McCoy v. United States, 266 F.3d 1245, 1274 (11th

Cir. 2001) (Barkett, J., concurring in result only) (“To

penalize a petitioner for failing to make a claim on

appeal that had been explicitly rejected by every

circuit in the country would be patently unfair.”). As

the Second Circuit has put it, “If we were to penalize

defendants for failing to challenge entrenched

precedent, we would be insisting upon an omniscience

on the part of defendants about the course of the law

that we do not have as judges.” United States v. Viola,

35 F.3d 37, 42 (2d Cir. 1994), abrogated on other

grounds by Salinas v. United States, 522 U.S. 52

(1997); see infra 21, 24 n.8 (discussing Viola).

The Government argues it is nevertheless

worthwhile to require timely objections, even where,

as in this case, “circuit precedent accords with

uniform precedent in other circuits” in foreclosing the

objection. OB26. After all, the Government says, the

Rehaif petitioner ultimately succeeded in persuading

this Court to knock down the wall of adverse

precedent. Id. But this Court has already recognized

that the “remote possibility” that a claim will succeed

is no reason to reject a futility exception. Reed, 468

U.S. at 15. Anyway, and as Respondent notes,

Rehaif’s objection was not at that time futile—his

12

circuit had not yet directly addressed the specific

objection he raised. Resp. Br. 17-18.

It is not reasonable or fair to expect defendants

whose objections are truly futile to nevertheless raise

them, especially given the conventional wisdom about

how judges are likely to react to futile arguments.

While amici believe that most judges would not

retaliate against litigants, this fear might reasonably

dissuade defense counsel from objecting. See, e.g.,

United States v. Baker, 489 F.3d 366, 372 (D.C. Cir.

2007) (noting that defendant who objects to a

particular Rule 11 error “risks angering the judge”

and “possibly encourages the court to impose a more

severe sentence”); Toby J. Heytens, Managing

Transitional Moments in Criminal Cases, 115 Yale

L.J. 922, 989 n.363 (2006) (noting that “lawyers may

refrain from making (and thus preserving) certain

kinds of arguments out of a desire to avoid alienating

judges before whom they regularly appear”). Counsel

raising futile arguments may also fear sanctions. See,

e.g., United States v. Robinson, 251 F.3d 594, 596 (7th

Cir. 2001) (“There is no legal objection to the

imposition of sanctions for frivolous filings in a

criminal case ....”); In re Becraft, 885 F.2d 547, 550

(9th Cir. 1989) (imposing $2,500 sanction on defense

counsel for “reassert[ing] an argument in a petition

for rehearing which was summarily rejected on direct

appeal, and which fl[ew] in the face of unambiguous,

firmly established law”); see also Richard P. Mauro,

The Chilling Effect that the Threat of Sanctions Can

Have on Effective Representation in Capital Cases, 36

Hofstra L. Rev. 417, 417-19 (2007).

13

Counsel may also reasonably stay silent out of

respect for their “responsibility not to annoy or

antagonize judge or jury by objections perceived by

the judge to be meritless”—as “impatience or

undisguised incredulity on the part of the judge all too

easily may be translated in the minds of the jury into

a suggestion of insubstantiality of defense and of

grasping at straws.” Honeycutt v. Mahoney, 698 F.2d

213, 219 (4th Cir. 1983) (Murnaghan, J., dissenting).

Defense counsel, in other words, find themselves in

the precarious position of having to raise objections

they know the judge will overrule at the expense of

their standing with the court in order to avert plainerror review. At the very least, and as explained

above, raising foreclosed arguments will draw

attention away from arguments that remain viable

and so may lower the defendant’s chances of

prevailing on those points. Supra 7-8.

In the end, the Government’s rule rewards

defendants with undiscerning counsel (those not

judicious enough to focus on colorable claims),

uninformed counsel (those too ignorant of the state of

the law to know that the argument is foreclosed by

precedent), and the highly risk-tolerant (those willing

to chance upsetting the judge or jury, or risk burying

other better arguments, to press Hail-Mary

objections), while punishing defendants with prudent

counsel. It does so even though all those defendants

are similarly situated in the way that matters: The

law was squarely against them at trial but in their

favor by the time the case was on appeal. See

Henderson, 568 U.S. at 274 (cautioning against

applying plain-error review in such a way that would

14

result in “unjustifiably different

similarly situated individuals”).

treatment

of

II. Authority From This Court And Others

Supports Respondent’s Futility Exception.

Contrary to what the Government says, a futility

exception when uniform circuit precedent forecloses

an objection finds “meaningful support” in both this

Court’s precedents and lower-court decisions. OB25.

Several lines of authority bolster it, and none bars it.

A. This Court’s cases support the futility

exception.

In closely related contexts—including direct appeals—this Court has recognized that futility should

excuse procedural defaults.

1. For starters, the Court in O’Connor v. Ohio, 385

U.S. 92 (1966) (per curiam), held that a defendant’s

failure to raise in state court a then-futile objection

later made viable by an intervening decision of this

Court did not constitute an adequate state ground to

preclude the Court’s direct review (and reversal) of

the conviction. See Cardinale v. Louisiana, 394 U.S.

437, 439 (1969) (characterizing O’Connor). Defendant

O’Connor did not object when the prosecutor commented negatively on his invocation of his right to remain silent; he raised the issue only upon petitioning

this Court, which had recently held in Griffin v. California, 380 U.S. 609 (1965), that such practice violates

the Fifth Amendment. Because O’Connor could not

“be charged with anticipating the Griffin decision,”

the Court explained that his “failure to object in the

15

state courts cannot bar [him] from asserting [his] federal right” or “strip him of his right to attack the practice following its invalidation by this Court.” 385 U.S.

at 93; see also Anders v. California, 386 U.S. 738, 746

n.* (1967) (citing O’Connor and noting that the claim,

prior to Griffin, “did not raise an ‘arguable’ issue”).

O’Connor was no one-off. In Grosso v. United

States, 390 U.S. 62, 70-72 (1968), the Court reversed

on direct review a defendant’s state-court convictions

for failing to pay an occupational tax on illegal gambling proceeds—notwithstanding the defendant’s failure to object in state court that his convictions were

obtained in violation of the Fifth Amendment’s privilege against self-incrimination. At the time of trial,

that objection was foreclosed by this Court’s precedents, which the Court then overruled in the interim.

Id. at 67, 70-71.2

2 In a footnote in Hankerson v. North Carolina, 432 U.S.

233, 244 n.8 (1977), the Court suggested that the state could enforce its normal forfeiture rules even for objections that were

foreclosed by state precedent. But that was dicta: The defendant

had raised the objection on direct review in the state court, which

did not find that it was procedurally defaulted. Id. at 237-40.

Moreover, the Court did not say whether a procedural default of

a futile objection would affect federal court review, either directly by the Supreme Court (as at issue in O’Connor and Grosso)

or on federal collateral review. See Morrison v. United States, No.

16-cv-1517, 2019 WL 2472520, at *8-9 (S.D. Cal. June 12, 2019)

(granting motion to vacate sentence under 28 U.S.C. § 2255

where petitioner showed cause per Reed). To maintain consistency with O’Connor, the footnote is best read as addressing

only state-court proceedings.

16

2. The Court has endorsed the futility exception

outside of the direct review context, as well. For instance, in Reed, the Court explained that, generally,

a state-court defendant’s failure to raise a timely objection under the state’s procedure results in a procedural default that prevents the federal court from

vindicating his or her claim on habeas review. 468

U.S. at 13-14. But the Court recognized an exception

and held that the defendant had “cause” to excuse the

default because the objection was “not reasonably

available” at the time, a condition that occurs when

(among other things) “a near-unanimous body of

lower court authority” is aligned against the defendant. Id. at 16-17 (quotation marks and citation omitted); see also Smith v. Estelle, 602 F.2d 694, 709 n.19

(5th Cir. 1979) (excusing default where “the apparent

futility of objecting to an alleged constitutional violation excuses a failure to object”); Estelle v. Smith, 451

U.S. 454, 468 n.12 (1981) (adopting reasoning of Fifth

Circuit in Smith v. Estelle).

The Government correctly observes (at OB27)

that “prejudice” is also required to overcome a procedural default in the habeas context. Reed, 468 U.S. at

11-12. It makes sense that the petitioner would need

to show something more—like prejudice—to excuse

forfeiture in federal habeas cases. After all, “[f]ederal

habeas challenges to state convictions … entail

greater finality problems and special comity concerns.” Engle v. Isaac, 456 U.S. 107, 134 (1982).3 In

3 In Engle, the Court declined to find cause to excuse a procedural default because (unlike in Reed) “numerous courts” had

agreed with the defendant’s basic position. 456 U.S. at 132-33;

see Reed, 468 U.S. at 19-20 (distinguishing Engle).

17

federal cases on direct review, by contrast, “society’s

legitimate interest in the finality of the judgment has

[not yet] been perfected” and “considerations of comity” are absent. United States v. Frady, 456 U.S. 152,

152-53, 164, 166 (1982). Indeed, where at least one of

those interests (finality) was absent in cases like

O’Connor and Grosso, the Court did not require the

defendant to demonstrate prejudice before overlooking the procedural default. Here, both finality and

comity concerns are absent, making the case for the

futility exception even stronger than it was in those

cases. Ultimately, though, the Government’s argument is a non sequitur: To recognize the futility exception for federal cases on direct review is not

necessarily to dispense with the prejudice inquiry. See

Resp. Br. 15 n.6. A finding of futility means that the

ordinary standard of review for preserved errors applies, which in most cases will involve a harmless-error analysis. See Fed. R. Crim. P. 52(a); infra 26.

3. The futility exception also accords with the

well-settled principle that appellate courts directly reviewing convictions should apply the law as it currently stands, not as it stood at the time of trial. See

Griffith v. Kentucky, 479 U.S. 314 (1987); Washington,

12 F.3d at 1138-39 (describing rule that the court

“may consider issues not raised at trial where a supervening decision has changed the law in appellant’s

favor and the law was so well-settled at the time of

trial that any attempt to challenge it would have appeared pointless” as “a corollary to the general principle that an appellate court should apply the law in

effect at the time of appeal”). In Griffith, the Court

recognized the fundamental unfairness that comes

18

from denying defendants whose cases are still on direct review the opportunity to avail themselves of favorable intervening Supreme Court authority. 479

U.S. at 323, 327-28. The restrictive view of claimpreservation the Government advances will deny

many defendants the full benefit of Griffith’s holding—which the Court made clear applies “to all

cases … pending on direct review … with no exception.” Id. at 328 (emphasis added). It would instead

leave them only with plain-error review.4 And, as explained, it would do so for no good reason. Supra § I.

B. Lower court cases support the futility

exception.

Looking beyond this Court, lower courts, both

state and federal, have also endorsed a futility exception like the one Respondent and amici advocate. Contra OB26.

1. Several state supreme courts treat as preserved

futile objections, subjecting them to the ordinary

standard of review (rather than the state-law version

of plain-error review) or rejecting waiver and forfeiture arguments that would otherwise render the

4 While United States v. Booker, 543 U.S. 220, 268 (2005),

noted in dicta that it “expect[ed]” courts applying supervening

Supreme Court precedent to continue to ask “whether the issue

was raised below and whether it fails the ‘plain-error’ test,” the

Court had no cause to (and did not) address whether those “ordinary prudential doctrines” apply in the extraordinary situation where a circuit consensus foreclosed the argument.

19

claim unreviewable.5 These courts have rightly recognized that “the rationale for denying the defendant a

more favorable standard of review is not applicable”

and “considerations of fundamental fairness weigh

against applying the less favorable standard of review

to the defendant.” Vasquez, 923 N.E.2d at 532-33. And

they acknowledge that stringent application of

preservation rules in this context “would be counterproductive to the goal of judicial efficiency.” Robinson,

253 P.3d at 89.

2. Federal appellate courts have also seen the

folly in imposing plain-error review on futile objections. See Br. in Opp. 11-12. As the Government

points out, several of those cases involved defendants

who failed to renew an objection already made, OB26,

5 See, e.g., State v. Robinson, 253 P.3d 84, 89-90 (Wash.

2011) (recognizing exception to state-law equivalent of Rule

52(b) where the court issues a new controlling constitutional interpretation after the completion of the defendant’s trial that

overrules the existing one and applies retroactively); Commonwealth v. Vasquez, 923 N.E.2d 524, 530-33 (Mass. 2010) (declining to apply less favorable standard of review where intervening

Supreme Court decision abrogated then-governing precedent);

see also People v. Sandoval, 161 P.3d 1146, 1153 n.4 (Cal. 2007)

(excusing forfeiture where objection “would have been futile” because trial court was bound by precedent to deny it); State v.

Ledbetter, 881 A.2d 290, 307 (Conn. 2005), overruled on other

grounds by State v. Harris, 191 A.3d 119 (Conn. 2018) (excusing

waiver where argument was foreclosed); State v. Goodyear, 413

P.2d 566, 567-68 (Ariz. 1966) (rejecting wavier argument where

objection “would have been futile” under established law at the

time of trial), abrogated on other grounds by State v. Bush, 423

P.3d 370 (Ariz. 2018); see also Resp. Br. 20-21 & n.8 (citing additional state cases).

20

but those courts did not uniformly limit their endorsement of the futility exception to those circumstances.

E.g., Uscanga-Mora, 562 F.3d at 1294 (stating

broadly that “counsel will not be stuck with plain error review for having failed to voice an objection when

doing so would have been futile”). And again, the difference in contexts only strengthens the case for the

futility exception’s application here. If it is futile to

take further exception after the district court overrules the objection because it is unlikely the court will

change its mind and adopt the defendant’s position,

see Thornley v. Penton Publ’g, Inc., 104 F.3d 26, 30 (2d

Cir. 1997), it is even more pointless to raise an objection when the district court cannot adopt the defendant’s position in the first place because of controlling

precedent uniform across the circuits.

In any event, cases involving a failure to renew an

objection are not the only ones in which the courts

have spoken approvingly of a futility exception. They

have also done so where the defendant never raised

an objection. See Resp. Br. 19-20 (discussing cases);

see, e.g., United States v. Cano-Varela, 497 F.3d 1122,

1132 (10th Cir. 2007) (McConnell, J.) (noting that “we

are hesitant to apply a heightened standard of review

[of unpreserved Rule 11(c)(1) violations] when defense

counsel did not object to receiving the court’s help [in

persuading defendant to plead guilty],” though ultimately reversing under the plain-error standard);

United States v. Byers, 740 F.2d 1104, 1109 n.6 (D.C.

Cir. 1984) (Scalia, J.) (taking a “departure from the

usual rule that we will not consider claims of error

raised here for the first time” where “counsel could

well have thought the objection futile”); United States

v. Rivera, 513 F.2d 519, 526 (2d Cir. 1975) (Friendly,

21

J.) (rejecting government’s waiver argument because

“counsel could have considered objection to be futile”);

cf. Baker, 489 F.3d at 373 (observing that a “blanket

plain error standard” ignores that some cases are “fitting candidate[s]” for “a less exacting standard than

plain error”).

In the habeas context, too, several circuit courts

have followed Reed in recognizing that it would be

“pointless (and indeed wasteful) to require a defendant to raise … a [once-]futile objection in the district

court.” English v. United States, 42 F.3d 473, 479 (9th

Cir. 1994); see Cross v. United States, 892 F.3d 288,

296 (7th Cir. 2018) (relying on Reed to excuse procedural default where Supreme Court “abrogated a substantial body of circuit court precedent” rejecting

defendant’s untimely claim).

Even federal courts that treat foreclosed objections as unpreserved and therefore redressable on appeal only if Olano’s four factors are met have

nevertheless modified that analysis to ease the harshness of plain-error review. The Second Circuit, for instance, has said that “[w]hen a supervening decision

alters settled law, the three Olano conditions for reviewing plain error under Rule 52(b) still must be

met, but with one crucial distinction: the burden of

persuasion as to prejudice (or, more precisely, lack of

prejudice) is borne by the government, and not the defendant.” Viola, 35 F.3d at 42; see Baumgardner, 85

F.3d at 1309 n.2 (“[W]e find the Viola analysis persuasive,” for it “recogniz[es] that a defendant should not

22

be penalized for failing to challenge entrenched precedent.”). 6

C. Nothing prevents this Court

adopting the futility exception.

from

As explained above, good reason and good authority support the futility exception. No rule or precedent

prevents the Court from treating the error here as

preserved and therefore exempt from plain-error review.

The Government relies principally on Johnson v.

United States, 520 U.S. at 467-68. See OB25, 27. But

as Respondent has explained (Br. in Opp. 14; Resp.

Br. 17), and the Government does not contest, a circuit split over the underlying legal issue put the defendant in Johnson on notice that an objection would

not have been futile. See United States v. Gaudin, 515

U.S. 506, 527 (1995) (Rehnquist, C.J., concurring)

(noting circuit split).

The Government’s reliance (at OB27) on Bousley

v. United States, 523 U.S. 614, 623 (1998), fails for

that same reason. There, the Court refused to excuse

for futility a procedural default in a collateral attack

on a conviction. As in Johnson, the circuits were split

6 Although some Second Circuit panels have questioned Viola’s validity after Johnson v. United States, 520 U.S. 461 (1997),

see, e.g., United States v. Grote, 961 F.3d 105, 116 n.3 (2d Cir.

2020), it has not been overruled and has been applied since Johnson, see, e.g., United States v. Malpeso, 115 F.3d 155, 165 (2d Cir.

1997); United States v. Monteleone, 257 F.3d 210, 223 (2d Cir.

2001).

23

at the time the defendant failed to raise the underlying legal claim in the lower courts. See United States

v. Bousley, 950 F.2d 727 (8th Cir. 1991) (affirming

conviction on direct appeal); Bailey v. United States,

516 U.S. 137, 142 (1995), superseded by statute as recognized in Welch v. United States, 136 S. Ct. 1257

(2016) (noting “conflict” in the circuits going back to

at least 1988). Bousley, then, rejected a far broader

notion of futility than the one advanced here. See infra 24-25.7

The Government also attempts to draw support

from this Court’s statement in Johnson that it lacks

the authority to create “an exception” to Rule 52(b).

OB27 (quoting 520 U.S. at 466). But that assumes

that Rule 52(b) applies in the first place. It does not.

As Respondent has explained, Rule 52 does not say

that “unpreserved [errors] may be addressed only under Rule 52(b),” and indeed, the preexisting law that

Rule 52 codifies, along with the values of fairness and

efficiency the rule must be “interpreted” to advance,

show that such errors should not be addressed under

Rule 52(b) at all. Resp. Br. 9; see id. at 9-13.

7 One of the appellate decisions the Government cites (at

OB25-26)—United States v. Knoll, 116 F.3d 994, 1000 (2d Cir.

1997)—is inapposite for this same reason. In the other two,

where the courts reviewed for plain error, the defendant did not

argue that a less stringent standard of review should apply because the unraised argument was futile. See United States v.

Johnson, 979 F.3d 632, 637 (9th Cir. 2020); United States v.

Hughes, 401 F.3d 540, 547-48 (4th Cir. 2005). Those decisions,

therefore, should be given little weight and anyway are wrong

for the reasons offered elsewhere in this brief.

24

Rule 51, too, takes futile objections out of Rule

52(b)’s ambit. That rule provides that “[i]f a party

does not have an opportunity to object to a ruling or

order, the absence of an objection does not later prejudice that party.” Fed. R. Crim. P. 51. When an objection is thoroughly foreclosed across the circuits, a

defendant lacks a meaningful “opportunity” to object

to it, and so should not be “prejudice[d]” by the imposition of the plain-error standard.

Put another way, Rule 52(b) applies only to forfeited errors, but a defendant cannot forfeit an error

that is not available in the first place: “[A]n appellant

can only abandon an argument that was actually

available to him, and thus may raise a new argument

based on an intervening change in the law during the

pendency of an appeal.” United States v. Lockhart,

947 F.3d 187, 196 n.4 (4th Cir. 2020) (quotation marks

omitted). 8

III. Respondent’s

Futility

Appropriately Narrow.

Exception

Is

The futility exception here is narrow, applying

only in circumstances where it would indeed serve efficiency and justice.

First, it applies only to unraised claims that were

foreclosed across the board. A claim is futile, and

therefore tested for harmlessness rather than plain

8 If the Court nonetheless believes it must apply Rule 52(b)

to all unraised objections, even those that were foreclosed by uniform circuit authority, it should adopt the Second Circuit’s approach, as articulated in Viola, which operates within Rule

52(b)’s strictures. See 35 F.3d at 42; supra 21-22.

25

error, only where every circuit to address the question

(including the defendant’s) has rejected it. In other

words, it is not good enough that the argument “was

unacceptable to [a] particular court at [a] particular

time.” Bousley, 523 U.S. at 623 (quoting Engle, 456

U.S. at 130 n. 35) (emphasis added). It must be “more

generally unacceptable,” Smith, 250 F.3d at 1075

(Wood, J., dissenting from denial of rehearing en

banc), with a “nationwide rejection, by every court [to

address it],” McCoy, 266 F.3d at 1273 (Barkett, J.,

concurring in result only). Compare Engle, 456 U.S.

at 133 (claim not futile if “numerous courts agreed”

with it at the time). In those circumstances, the objection truly is futile and efficiency and fairness counsel

in favor of treating unraised claims as preserved.

This is not a difficult standard to administer. Indeed, courts already determine whether unraised objections would have been futile when they decide

whether a preservation rule constitutes an adequate

state ground to bar direct Supreme Court review or

whether there is cause to excuse a procedural default

on federal habeas review. See supra 14-16, 21. They

do the same when applying doctrines of administrative exhaustion. Resp. Br. 15. More broadly, courts

regularly ascertain the state of the law when determining, for instance, whether the law is clearly established for purposes of habeas relief or qualified

immunity.

This case is proof of the rule’s administrability, for

even the Government acknowledges that Respondent

was prosecuted “[c]onsistent with the courts of appeals’ uniform interpretation of the felon-in-possession offense at that time.” OB4 (emphasis added); see

26

Rehaif, 139 S. Ct. at 2195 (observing that, at the time

of Rehaif’s plea, “no court of appeals had required the

Government to establish a defendant’s knowledge of

his status in the analogous context of felon-in-possession prosecutions”).

Second, the futility exception just means that the

plain-error framework is not applicable. It does not

mean that the conviction or sentence must be vacated.

Defendants who can avail themselves of the futility

exception must still demonstrate that there was error

under the new law.

All agree there was error in Respondent’s case—

indeed, the Government concedes the Rehaif error

was plain. OB8. But in other cases, it may be that,

even under the new law, there was no problem with

the proceedings. That is especially likely when the intervening decision of this Court merely “fine tune[s]”

the law in the circuits, rather than reversing or overruling it. United States v. McGuire, 79 F.3d 1396,

1410 (5th Cir.) (Wiener, J., concurring), opinion vacated on reh’g en banc, 90 F.3d 107 (5th Cir. 1996).

And unless the error is structural or otherwise falls

within a category of errors “that can be corrected regardless of their effect on the outcome,” the Government will still have an opportunity (and the burden)

to avert vacatur by showing that any error was harmless. Olano, 507 U.S. at 734-35. Under that standard,

defendants who are “manifestly guilty” (OB 43) will

not be entitled to relief.

Third, the futility exception is not a one-way

ratchet that favors only defendants. As Respondent

27

indicates, the Government would also be able to avail

itself of it. See Resp. Br. 14 n.5.

CONCLUSION

For the foregoing reasons, the plain-error standard does not apply, and this Court should affirm the

judgment below if it determines either that Rehaif error is structural or that the Government cannot carry

its burden to show that the error was harmless.

Respectfully submitted,

Thomas M. Bondy

ORRICK, HERRINGTON &

SUTCLIFFE LLP

1152 15th Street, NW

Washington, DC 20005

Kory DeClark

ORRICK, HERRINGTON &

SUTCLIFFE LLP

405 Howard Street

San Francisco, CA

94105

March 25, 2021

Andrew D. Silverman

Counsel of Record

Rachel G. Shalev

Katherine E. Munyan

ORRICK, HERRINGTON &

SUTCLIFFE LLP

51 West 52nd Street

New York, NY 10019

(212) 506-5000

asilverman@orrick.com